Application for stay of execution of sentence of death presented to Justice GINSBURG and by her referred to the Court denied. Motion for leave to proceed on 8 1/2 x 11 inch paper granted. Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit denied.

Wednesday, May 18, 2005

Truer Words Was Never Spoke

So no, don't ask "Whom does this benefit?" because it so far underdetermines a prudent answer that the only response will be an echo of your own prejudices.

Read the rest of a very interesting post at Unfogged that all should read and take to heart. Despite my best efforts, I admit that I have been guilty on occasion of hearing the "echo of" my "own prejudices." Who among us has not? But what ogged reminds us is that we should do better.

Tuesday, May 17, 2005

More on the Death Penalty--Does Our Obsession With Race Blind Us to Other Causes of Injustice

Sentencing Law and Policy points out quite correctly that the A.P. study shows more than the effects of race on the death penalty. However, because of our fixation on race, there is less focus than there should be on identifying the most important causes of unfair outcomes in capital cases and resolving them first.

For example, Sentencing Law and Policy links to the Death Penalty Information Center ("DPIC"), which has several studies, including one on the death penalty in Philadelphia. The results are troubling, but at least from what is reported, they are very incomplete, and because of their focus on race, possibly miss important root causes.

For me, one of the most overlooked factors is money. A few examples. It seems uncontroversial to suggest that the quality of a defendant's lawyer affects the outcome in a capital case. Further, and with all very due respect to hard working, skilled and well meaning public defenders and appointed counsel, it is not hard to imagine that in general, a skilled retained lawyer, with sufficient resources fully to defend a case, will be more likely to avoid a death sentence for his or her client. If my assumptions are true (I do not have the data, and would welcome a link to some), then wealth (both individual and family) is going to correlate to outcome in capital cases.

Further, if we assue that African-American defendants are less likely to be able to afford retained counsel than Caucasian defendants (I think this is a reasonable assumption--for the population in general, the average household income for an African-American family is lower than the average for a Caucasian family, it is a stretch, but not an unreasonable one, to assume that the same is true of the subset of those groups that are defendants in capital cases), then at least some of the effect shown in these studies is not racism, it is race acting as a proxy for wealth. Without parsing out which is the greater effect, it is possible that we are focusing on the wrong thing. Maybe instead of accusing District Attorneys of being racist (and the DPIC comes perilously close to doing just that in their comments on the race of decision makers in death penalty cases) there should be more focus on funding public defenders in capital cases (or, indeed, in all cases).

The list goes on. How do we control for things like the education and class of the defendant? These things surely go to how the defendant is viewed by the jury, but are neither easily quantified and analyed nor, more important, corrected for. What about the crime rate and the level of crime in the neighborhood where the murder took place? How do we control for what could be jurors' fear of crime in their neighborhood or (tragically) acceptance of crime in other neighborhoods? Finally, as Sentencing Law and Policy points out, how do you account for local decisions on capital cases driven by considerations such as a county's ability to pay the increased costs of capital trials?

Does all of this mean that race is not a factor in decisions in capital cases or that studies such as the A.P.'s recent study or the studies referred to by DPIC are worthless? Of course not. It does mean that instead of trying to make the death penalty mostly about race, we should look more closely and analytically at the factors that go into disparate outcomes and go about adressing the most important factors first.

Saturday, May 07, 2005

Unfair Death Penalty or Unfair Reporting?

Putting to one side the important questions of whether the death penalty is morally justified, effective in meeting its stated goals or fair as practiced, one wonders if the recently-reported Associated Press study on the death penalty in Ohio is itself fair or honest, rather than an advocacy piece.

Ohio's death penalty has been inconsistently applied since it was enacted in 1981, according to a first-ever analysis by The Associated Press. Race, the extensive use of plea bargains and even where a crime has been committed all play a role in who is sentenced to death.In its research, the AP analyzed 1,936 indictments reported to the Ohio Supreme Court from October 1981 through 2002.Among the findings:--Offenders facing a death penalty charge for killing a white person were two times more likely to go to death row than if they had killed a black victim. Death sentences were handed down in 18 percent of cases where the victims were white, compared with 8.5 percent of cases where victims were black.. . .--In Cuyahoga County, a Democratic stronghold, just 8 percent of offenders charged with a capital crime received a death sentence. In conservative Hamilton County, 43 percent of capital offenders ended up on death row.

I have not found a link to the study, so I of course hold open the possibility that the authors considered and controlled for this, but one reading of the results is that:(1) communities follow different standards in imposing the death penalty;(2) communities that are aligned with the Democratic Party are less likely to impose the death penalty; and(3) African-American communities tend to be aligned with the Democratic Party.

The three factors listed above, if true, would explain the apparent finding that criminals are less likely to be sentenced to death in communities that are predominately African-American (and thus, presumably, where the victims are predominately African-American) and more likely to be sentenced to death in communities that are predominately Caucasian (and thus, presumably, where the victims are predominately Caucasian). Is this a problem? Perhaps. It would mean that justice was being administered differently in one community within a state than in another. However, this is not news. Nor does it say anything about what the right result is.

I do not mean to claim that decisions involving the death penalty are not infected with considerations of race (and class and sex). My intuition is that they are, although I know that this actually is quite hard to prove empirically. However, if the authors of the study did not consider and control for the obvious points I have made above, they have crossed the line from reporting to advocacy by ignoring less sinister explanations for the phenomena they observed than white racism.

Love

"After all that worry and rough seas, night runs aground. Some of them made it to shore after all. He knows a place where they can grab breakfast. Look at the time. Look at me. Look at them holding hands. They talked all night. While everyone else went mad they found each other. Not made for each other but maybe made out of each other. The same substance, the way the city is one substance, every inch of it from one end to the other." Colson Whitehead, The Colossus of New York 138-39 (2003).